# Hines v. Commissioner of Social Security Administration

> District Court, N.D. Ohio · March 13, 2020

URL: https://www.frixlaw.com/law-library/cases/10368131

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** March 13, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARKEYS HINES, ) CASE NO. 1:19CV0289
)
Plaintiff, ) MAGISTRATE JUDGE
) GEORGE J. LIMBERT
v. )
)
ANDREW M. SAUL1, )
COMMISSIONER OF SOCIAL ) MEMORANDUM OPINION
SECURITY ADMINISTRATION, ) AND ORDER
)
Defendant. )
Plaintiff Markeys Hines (“Plaintiff”) requests judicial review of the final decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying his application
for a period of disability and disability insurance benefits (“DIB”). ECF Dkt. #1. In his brief on
the merits, filed on July 8, 2019, Plaintiff asserts that the administrative law judge’s (“ALJ”)
decision is not supported by substantial evidence due to his treatment of certain medical opinions.
ECF Dkt. #14. For the following reasons, the Court REVERSES the ALJ’s decision and
REMANDS this case for reevaluation of Dr. Keppler’s September 6, 2016 opinion.
I. PROCEDURAL HISTORY
On March 8, 2016, Plaintiff filed a Title II application for a period of disability and DIB.
ECF Dkt. #11 (“Tr.”)2 at 19, 94, 116, 178. In his application, Plaintiff alleged disability beginning
April 9, 2014 due to: back injury; arthritis; depression; and “will have x-lift surgery on back.” Id.
at 19, 79-80, 96. Plaintiff’s application was denied initially on May 17, 2016 and upon
reconsideration on October 13, 2016. Id. at 19, 93-94, 114-16.
1 On June 17, 2019, Andrew M. Saul became the Commissioner of Social Security, replacing acting
Commissioner Nancy A. Berryhill. See Fed. R. Civ. P 25(d).
2 All citations to the transcript refer to the page numbers assigned when the transcript was compiled (located
on the bottom right corner of each page) rather than the page numbers assigned when the transcript was filed in the
CM/ECF system (“PageID #”).
1
On November 9, 2016, Plaintiff requested an administrative hearing. Tr. at 19, 132. On
December 20, 2017, a hearing was held before an ALJ in which Plaintiff, with counsel present,
and a vocational expert (“VE”) testified. Id. at 19, 38. The ALJ issued his decision on May 29,
2018, finding Plaintiff not disabled and denying his application for period of disability and DIB.
Id. at 16-32. Plaintiff requested a review of the hearing decision, and on January 14, 2019, the
Appeals Council denied review. Id. at 1-4, 176.
On February 7, 2019, Plaintiff filed the instant suit seeking review of the ALJ’s decision.
ECF Dkt. #1. The parties consented to the jurisdiction of the undersigned. ECF Dkt. #17. On July
8, 2019, Plaintiff filed a merits brief, and the Commissioner filed a merits brief on August 7,
2019. ECF Dkt. #s 14, 15.
II. RELEVANT PORTIONS OF THE ALJ’S DECISION
On May 29, 2018, the ALJ issued a decision finding that Plaintiff was not disabled. Tr.
at 16-32. The ALJ stated that Plaintiff met the insured status requirements of the Social Security
Act through December 31, 2019. Id. at 21. He further stated that Plaintiff had not engaged in
substantial gainful activity since April 9, 2014, the alleged onset date. Id. Continuing, the ALJ
determined that Plaintiff had the following severe impairments: spine disorders; dysfunction of
major joints (ankle); depressive disorder; substance addiction disorder; and alcohol use disorder.
Id. The ALJ then indicated that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. Id.
After considering the record, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to perform sedentary work, as defined in 20 C.F.R. § 404.1567(a), except for
the following limitations: can occasionally climb ramps and stairs, but never climb ladders, ropes,
or scaffolds; can frequently balance and occasionally stoop, kneel, crouch, and crawl; requires
a cane for ambulation; can never work at unprotected heights; is limited to performing simple
routine tasks with no strict production rate-paced requirements; can tolerate frequent interactions
with supervisors, coworkers, and the public; can tolerate occasional workplace changes. Tr. at
23.
2
The ALJ then stated that Plaintiff is unable to perform any past relevant work. Tr. at 30.
He further found that Plaintiff was a younger individual on the alleged disability onset date, has
at least a high school education, and is able to communicate in English. Id. The ALJ noted that
transferability of job skills was not an issue because Plaintiff’s past relevant work is unskilled.
Id. Considering Plaintiff’s age, education, work experience, and RFC, the ALJ found that there
were jobs that existed in significant numbers in the national economy that Plaintiff can perform.
Id. Ultimately, the ALJ determined that Plaintiff had not been under a disability, as defined in the
Social Security Act, from April 9, 2014, through the date of his decision. Id. at 31.
III. STEPS TO EVALUATE ENTITLEMENT TO SOCIAL SECURITY BENEFITS
An ALJ must proceed through the required sequential steps for evaluating entitlement to
Social Security benefits. These steps are:
1. An individual who is working and engaging in substantial gainful activity
will not be found to be “disabled” regardless of medical findings (20
C.F.R. §§ 404.1520(b) and 416.920(b) (1992));
2. An individual who does not have a “severe impairment” will not be found
to be “disabled” (20 C.F.R. §§ 404.1520(c) and 416.920(c) (1992));
3. If an individual is not working and is suffering from a severe impairment
which meets the duration requirement, see 20 C.F.R. § 404.1509 and
416.909 (1992), and which meets or is equivalent to a listed impairment
in 20 C.F.R. Pt. 404, Subpt. P, App. 1, a finding of disabled will be made
without consideration of vocational factors (20 C.F.R. §§ 404.1520(d) and
416.920(d) (1992));
4. If an individual is capable of performing the kind of work he or she has
done in the past, a finding of “not disabled” must be made (20 C.F.R. §§
404.1520(e) and 416.920(e) (1992));
5. If an individual’s impairment is so severe as to preclude the performance
of the kind of work he or she has done in the past, other factors including
age, education, past work experience and residual functional capacity
must be considered to determine if other work can be performed (20
C.F.R. §§ 404.1520(f) and 416.920(f) (1992)).
Hogg v. Sullivan, 987 F.2d 328, 332 (6th Cir. 1992). The plaintiff has the burden to go forward
with the evidence in the first four steps and the Commissioner has the burden in the fifth step.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997); Moon v. Sullivan, 923 F.2d
1175, 1181 (6th Cir. 1990).
IV. STANDARD OF REVIEW
3
Under the Social Security Act, the ALJ weighs the evidence, resolves any conflicts, and
makes a determination of disability. This Court’s review of such a determination is limited in
scope by § 205 of the Act, which states that the “findings of the Commissioner of Social Security
as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g).
Therefore, this Court’s scope of review is limited to determining whether substantial evidence
supports the findings of the Commissioner and whether the Commissioner applied the correct
legal standards. Abbott v. Sullivan, 905 F.2d 918, 922 (6th Cir. 1990).
The substantial-evidence standard requires the Court to affirm the Commissioner’s
findings if they are supported by “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) (citing
Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citation omitted)). Substantial evidence
is defined as “more than a scintilla of evidence but less than a preponderance.” Rogers v. Comm’r
of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007); see Biestek v. Berryhill, 139 S. Ct. 1148, 1154,
203 L. Ed. 2d 504 (2019) (“[W]hatever the meaning of ‘substantial’ [is] in other contexts, the
threshold for such evidentiary sufficiency is not high.”). Accordingly, when substantial evidence
supports the ALJ’s denial of benefits, that finding must be affirmed, even if a preponderance of
the evidence exists in the record upon which the ALJ could have found plaintiff disabled. The
substantial evidence standard creates a “‘zone of choice’ within which [an ALJ] can act without
the fear of court interference.” Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001). However, an
ALJ’s failure to follow agency rules and regulations “denotes a lack of substantial evidence, even
where the conclusion of the ALJ may be justified based upon the record.” Cole, 661 F.3d at 937
(citing Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 407 (6th Cir.2009)) (internal citations
omitted). Therefore, even if an ALJ’s decision is supported by substantial evidence, “a decision
of the Commissioner will not be upheld where the SSA fails to follow its own regulations and
where that error prejudices a plaintiff on the merits or deprives the plaintiff of a substantial right.”
Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r
of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).
V. LAW AND ANALYSIS
4
Plaintiff challenges the ALJ’s decision of May 29, 2018, alleging that the ALJ erred in
weighing the opinions of: (1) treating physician Dr. Louis Keppler; and (2) examining physician
Dr. Michael Harris. ECF Dkt. #14 at 11-17. For the following reasons, the Court finds that the
ALJ did not commit reversible error, except for his treatment of Dr. Keppler’s September 2016
opinion.
A. OPINION OF TREATING PHYSICIAN
Plaintiff first argues that the ALJ violated the treating physician rule in his treatment of
the opinions of treating physician, Dr. Louis Keppler, M.D. ECF Dkt. #14 at 11-16. This Court
agrees as it pertains to Dr. Keppler’s September 6, 2016 opinion. An ALJ must give controlling
weight to the opinion of a treating source3 if the ALJ finds that the opinion is well-supported by
medically acceptable clinical and diagnostic techniques and is not inconsistent with other
substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2); Price v. Comm’r Soc. Sec. Admin.,
342 Fed.Appx. 172, 175-76 (6th Cir. 2009); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544
(6th Cir. 2004). Substantial evidence can be “less than a preponderance,” but must be adequate
for a reasonable mind to accept the ALJ’s conclusion. Kyle v. Comm’r of Soc. Sec., 609 F.3d 847,
854 (6th Cir. 2010) (citation omitted).
If an ALJ declines to give controlling weight to the opinion of a treating source, he must
determine the weight to give that opinion based upon a number of regulatory factors. 20 C.F.R.
§ 404.1527(c)(2). Such factors include “the length of the treatment relationship and the frequency
of examination, the nature and extent of the treatment relationship, supportability of the opinion,
consistency of the opinion with the record as a whole, and the specialization of the treating
source.” Wilson, 378 F.3d at 544 (citing 20 C.F.R. § 404.1527(c)). Although an ALJ must
“consider” all of the factors in 20 C.F.R. § 404.1527(c) and must “apply” the factors listed in 20
3 The Social Security Administration has changed the treating physician rule for claims filed on or after March
27, 2017. See “Revisions to Rules Regarding the Evaluation of Medical Evidence,” available at
https://www.regulations.gov/document?D=SSA-2012-0035-0001. The SSA will no longer give any specific evidentiary
weight to medical opinions, including affording controlling weight to medical opinions. Rather, the SSA will consider
the persuasiveness of medical opinions using the factors specified in their rules and will consider the supportability and
consistency factors as the most important factors. Since Plaintiff filed his claim before March 27, 2017, the former
treating physician rule applies.
5
C.F.R. § 404.1527(c)(2), including its subsections, through (c)(6) to determine the weight to give
that opinion, he is not required to discuss every factor in his decision as long as he provides
“good reasons.” See 20 C.F.R. § 404.1527(c)(2); SSR 96-2p, 1996 WL 374188, at *5 (1996)4;
Thacker v. Comm’r of Soc. Sec., 99 Fed.Appx. 661, 665 (6th Cir. 2004) (“An ALJ need not
discuss every piece of evidence in the record for his decision to stand.”); Francis v. Comm’r Soc.
Sec. Admin., 414 Fed.Appx. 802, 804 (6th Cir. 2011) (“Although the regulations instruct an ALJ
to consider these factors, they expressly require only that the ALJ’s decision include ‘good
reasons ... for the weight ... give[n] [to the] treating source’s opinion’—not an exhaustive
factor-by-factor analysis.”) (internal citation omitted). Even a one sentence explanation for
discounting a treating physician’s opinion can suffice under the good reasons requirement. See
Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 651 (6th Cir. 2009) (ALJ’s one -sentence justification
for discounting treating physician’s opinion “reach[ed] several of the factors that an ALJ must
consider,” and satisfied good reasons requirement.) (internal citations omitted).
Under the “good reasons” rule, the ALJ must provide reasons that are “sufficiently
specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating
source’s medical opinion and the reasons for that weight.” SSR 96-2p, 1996 WL 374188, at *5.
This allows a plaintiff to understand how his case is determined, especially when he knows that
his treating physician has deemed him disabled and he may therefore “be bewildered when told
by an administrative bureaucracy that he is not, unless some reason for the agency’s decision is
supplied.” Wilson, 378 F.3d at 544 (quoting Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999)).
Further, it “ensures that the ALJ applies the treating physician rule and permits meaningful
appellate review of the ALJ’s application of the rule.” Id.
The Sixth Circuit has noted that, “while it is true that a lack of compatibility with other
record evidence is germane to the weight of a treating physician’s opinion, an ALJ cannot simply
invoke the criteria set forth in the regulations if doing so would not be ‘sufficiently specific’ to
4 Effective March 27, 2017, SSR 06-03p, 96-2p, and 96-5p have been rescinded by Fed. Reg. Notice Vol. 82,
No. 57, page 15263. These regulations are still effective for claims filed before March 27, 2017.
6
meet the goals of the ‘good reason’ rule.” Friend v. Comm’r of Soc. Sec., 375 Fed.Appx. 543, 551
(6th Cir. 2010). If an ALJ fails to explain why he rejected or discounted the opinions and how
those reasons affected the weight afforded to the opinions, this Court must find that substantial
evidence is lacking, “even where the conclusion of the ALJ may be justified based upon the
record.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 243 (6th Cir. 2007) (citing Wilson, 378
F.3d at 544); Parks v. Social Sec. Admin., 413 Fed.Appx. 856, 864 (6th Cir. 2011).
Dr. Keppler treated Plaintiff’s low back condition since November 2014 and performed
an L4 fusion surgery in April 2016. ECF Dkt #14 at 13; tr. at 357, 363, 659-60, 704-05. The ALJ
afforded treating physician status to Dr. Keppler and the parties agree that he is qualified as a
treating physician. See tr. at 28; ECF Dkt. #s 14, 15.
On September 6, 2016, Dr. Keppler filled out a two-page checkbox form, opining that
Plaintiff could: occasionally lift and carry 15 pounds and 10 pounds frequently; stand and walk
a total of 2 hours in an 8-hour workday and 30 minutes without interruption; sit for a total of 6
hours in an 8-hour workday and 1 to 2 hours without interruption; can rarely climb, balance,
stoop, crouch, kneel, and crawl; occasionally perform reaching, push/pull, fine manipulation, and
gross manipulation; was prescribed a cane, walker, and brace; would need to be able to alternate
positions between sitting, standing, and walking at will; and requires additional unscheduled rest
periods during an 8-hour workday. Tr. at 28, 784-85.
The ALJ gave mixed weight to Dr. Keppler’s opinions, stating the following:
The undersigned gives great weight to Dr. Keppler’s standing, walking, and
sitting limitations because it is consistent with the record for the reasons discussed
in Drs. Manos and Das’ opinions above. The undersigned gives the remainder of
this opinion little weight because the medical evidence does not support the
limitations for the same reasons discussed in Dr. O’Reilly’s opinion above.
Tr. at 28-29. Because the ALJ incorporated, by reference, his prior discussions of the opinions
of State agency medical consultants, Dr. Diane Manos, MD, and Dr. Elizabeth Das, MD, as well
as the opinion of chiropractor Dr. James O’Reilly, DC, such opinions must also be examined. As
to the State agency reviewers, Drs. Manos and Das, the ALJ stated:
In May 2016, at the initial level, State Agency Medical Consultant, Diane Manos,
MD, opined the claimant could perform light work with reduced standing and
walking to four hours and postural and manipulative limitations (citing tr. at 88-
7
89). In October 2016, at the reconsideration level, State Agency Medical
Consultant, Elizabeth Das, MD, affirmed Dr. Manos’ opinion except Dr. Das
found the claimant could occasionally climb ramps and stairs and had no
limitation in kneeling (citing tr. at 108-10). The undersigned gives the opinions
little weight because the medical evidence supports greater limitations. such as,
the claimant had marked lower back tenderness (citing tr. at 787). In addition, the
claimant’s lumbar flexion and extension was greatly limited, muscle strength
decreased, and he had a positive straight leg raise bilaterally (citing tr. at 1668).
Tr. at 27-28. The ALJ noted the following with regard to Dr. O’Reilly’s opinion:
In May 2017, the claimant’s treating chiropractor, James O’Reilly, DC, opined the
following: The claimant could occasionally and frequently lift and carry five
pounds. The claimant could stand/walk for a total of four hours in an eight-hour
workday and sit for a total of three hours. The claimant requires a sit/stand option.
The claimant could rarely climb, balance, stoop, and crouch, but never kneel or
crawl. The claimant has manipulative and environmental limitations. The claimant
would require four additional hours of rest time during an eight-hour day (citing
tr. at 1612-13). The undersigned gives this opinion little weight because the
medical evidence does not support Dr. O’Reilly’s limitations. For example, during
a consultative examination, the claimant walked normally with a rolling walker,
he got up on and down from the exam table, and his straight leg raise was negative
(citing tr. at 786-87). Additionally, in 2017, the claimant reported after he
received a walking boot, his ankle ultimately healed and the pain gradually
resolved and upon examination, he had normal range of motion in his left ankle
and no instability (citing tr. at 1622-23). Moreover, Dr. O’Reilly is not an
acceptable medical source.
Tr. at 28.
Plaintiff points out several compelling reasons why the ALJ failed to identify good
reasons for giving less than controlling weight to Dr. Keppler’s opinion. ECF Dkt. #14 at 14-16.
The first reason pertains to Dr. Keppler’s limitation that Plaintiff would need to be able to
alternate positions between sitting, standing, and walking, at will5. See tr. at 785. The ALJ
afforded “great weight” to Dr. Keppler’s opinion as to standing, walking and sitting because those
opinions were consistent with the record for the same reasons as Drs. Manos and Das’ opinions
were given little weight, the reasons being that Plaintiff showed marked lower back tenderness,
his lumbar flexion and extension was greatly limited, his muscle strength was decreased, and he
had a positive straight leg raise bilaterally. Id. at 27-28 (citing tr. at 787, 1668). Plaintiff notes
that the ALJ never discussed that Dr. Keppler limited standing and walking to no more than 30
5 Plaintiff points out that, with some differences, three different physicians, Drs. O’Reilly, Keppler, and Harris,
all independently opined that Plaintiff would need to be able to alternate between sitting and standing at some level of
frequency. ECF Dkt. #14 at 17 n.3; see tr. at 785, 1613, 1625.
8
minutes at a time and that Plaintiff would need to be able to alternate positions at will. ECF Dkt.
#14 at 14 (citing tr. at 785). Plaintiff avers that since Dr. Keppler’s opinion limiting standing and
walking was entitled to “great weight,” then his further limitations on standing and walking,
implicating a need to alternate between sitting and standing, should likewise have been entitled
to weight. Id. Plaintiff indicates prejudicial error by noting that the VE testified that the need to
alternate between sitting and standing “at will” would preclude all work, as would a need to
alternate sitting and standing at 30 minute intervals for four hours each during the course of the
workday. Id. (citing tr. at 69-71, 75); see also tr. at 66-68.
The Commissioner claims that the ALJ’s finding of sedentary work, by definition,
assumes sitting for up to 6 hours in an 8-hour workday with very little standing or walking, and
that such finding indicated that the ALJ accepted only the portion of Dr. Keppler’s standing
limitations (up to 2 hours in an 8-hour workday) while rejecting the sit/stand option. ECF Dkt.
#15 at 13 (citing 20 C.F.R. § 404.1567(a); tr. at 23). The Commissioner also points out that, when
discussing Dr. Harris’ opinion, the ALJ stated that “the sedentary limitation eliminates the need
for a sit/stand option.” Id. (citing tr. at 28). Citing to SSR 83-12, the Commissioner concludes that
if Plaintiff could sit for 2 hours at a time without interruption, then he would not require an at-will
option to alternate positions. Id. The Social Security regulations do not support this conclusion.
SSR 83-12 describes the special situation of needing to alternate between sitting and standing as
follows:
In some disability claims, the medical facts lead to an assessment of RFC which
is compatible with the performance of either sedentary or light work except that
the person must alternate periods of sitting and standing. The individual may be
able to sit for a time, but must then get up and stand or walk for awhile before
returning to sitting. Such an individual is not functionally capable of doing either
the prolonged sitting contemplated in the definition of sedentary work (and for the
relatively few light jobs which are performed primarily in a seated position) or the
prolonged standing or walking contemplated for most light work. (Persons who
can adjust to any need to vary sitting and standing by doing so at breaks, lunch
periods, etc., would still be able to perform a defined range of work.).
SSR 83-12, 1983 WL 31253, at *4. This Ruling indicates that alternating between sitting and
standing is not a part of the definition of sedentary work and cannot therefore simply be impliedly
eliminated by an RFC of sedentary work. Id.; see also Wages v. Sec’y of Health & Human Servs.,
9
755 F.2d 495, 498 (6th Cir. 1985) (“Alternating between sitting and standing, however, may not
be within the definition of sedentary work.”). SSR 96-6p6 sheds further light on this issue:
Alternate sitting and standing: An individual may need to alternate the required
sitting of sedentary work by standing (and, possibly, walking) periodically. Where
this need cannot be accommodated by scheduled breaks and a lunch period, the
occupational base for a full range of unskilled sedentary work will be eroded. The
extent of the erosion will depend on the facts in the case record, such as the
frequency of the need to alternate sitting and standing and the length of time
needed to stand. The RFC assessment must be specific as to the frequency of the
individual’s need to alternate sitting and standing. It may be especially useful in
these situations to consult a vocational resource in order to determine whether the
individual is able to make an adjustment to other work.
SSR 96-9p, 1996 WL 374185, at *7. The ALJ and Plaintiff’s attorney explicitly questioned the
VE on the sit/stand option during the December 20, 2017 hearing. See tr. at 64-76. In fact, the VE
testified that there were no jobs for an individual like Plaintiff at the sedentary level who needed
the option to sit or stand at will. Tr. at 75-76 (referring to hypothetical one (tr. at 64-65), except
not at a light exertional level, and referring to a later hypothetical (tr. at 71-72) at the sedentary
exertional level).
Accordingly, the ALJ did not provide a good reason to discount Dr. Keppler’s further
standing and walking limitation of needing to alternate positions between sitting and standing.
Given the VE’s testimony, this error is not harmless and constitutes one reason for reversal.
The next reason the ALJ provided for affording “little weight” to the remainder of Dr.
Keppler’s opinion is because the medical evidence did not support the limitations for the same
reasons discussed in Dr. O’Reilly’s opinion. The reasons given to discount Dr. O’Reilly’s opinion
are either without merit or do not apply to Dr. Keppler. The final reason discussed below is too
weak to suffice alone as a “good reason.”
First, the ALJ correctly noted that Dr. O’Reilly, as a chiropractic physician, is not an
acceptable medical source. Tr. at 28. While true, this provides no reason to reject the opinion of
6 SSR 96-6p has been rescinded and does not apply to claims filed after March 27, 2017. See SSR 17-2p, 82
Fed. Reg. 15263-02 (Mar. 27, 2017) (rescinding and replacing SSR 96-6p). Since Plaintiff filed his claim in 2016, this
Ruling still applies.
10
Dr. Keppler, an orthopedic surgeon, who is an acceptable medical source and whom the ALJ
acknowledged is a treating physician. Id.
Second, the ALJ cited to records from October 2016, indicating that Plaintiff “walked
normally with a rolling walker” and got up and down from the exam table at a consultative exam
as reasons to discount Dr. O’Reilly’s opinion and “the remainder” of Dr. Keppler’s opinion. Tr.
at 28 (citing tr. at 786-87). As Plaintiff points out, walking with a rolling walker is not the same
as walking normally. ECF Dkt. #14 at 15. In addition, such reasons pertain to Plaintiff’s ability
to stand and walk, but, as noted, the ALJ actually afforded great weight to Dr. Keppler’s standing,
walking, and sitting limitations. Tr. at 28. Thus, this reason (walking normally with a rolling
walker) does not clearly pertain to Dr. Keppler’s “remainder” opinion. Further, the ability to get
up and down from an examination table has nothing to do, logically, with the “remainder” of Dr.
Keppler’s opinion, notably that Plaintiff: could rarely climb, balance, stoop, crouch, kneel, and
crawl; has manipulative and environmental limitations; and requires additional unscheduled rest
periods. Tr. at 28, 784-85.
Third, the ALJ afforded little weight to Dr. O’Reilly’s opinion, in part, because “his
straight leg raise was negative”at the time of Dr. Eulogio Sioson’s October 5, 2016 consultative
examination. Tr. 28, 787. However, the ALJ also afforded “little weight” to Dr. Sioson’s opinion.
Id. at 28, 786-87. On the same page of his decision, the ALJ cited to a finding of a positive
straight leg raising test as a reason to impose more stringent limitations than those opined by Drs.
Manos and Das. Id. at 28 (citing tr. at 1668). The Court agrees with Plaintiff that “[i]t is frankly
impossible to reconcile how a positive straight leg raising test on one occasion supports giving
‘little weight’ to Drs. Manos and Das’ opinions, while a negative straight leg raising test on
another occasion somehow supports giving ‘little weight’ to the opinions of Drs. O’Reilly and
Keppler.” ECF Dkt. #14 at 15.
Finally, as a further reason to afford little weight to Dr. O’Reilly and Dr. Keppler’s
“remainder” opinion, the ALJ cited to a May 17, 2017 record from Dr. Harris, showing
improvement in Plaintiff’s left ankle fracture. Tr. at 28 (citing tr. at 1622-23). The ALJ found that
dysfunction of major joints (ankle) was a severe impairment and even created a RFC to
11
accommodate the ankle impairment by limiting Plaintiff to sedentary work and required the use
of a cane for ambulation. Id. at 21, 23, 26. Also, the ALJ afforded only “partial,” “some,” and
“little” weight to Dr. Harris’ opinion. Id. Drs. O’Reilly and Keppler appear to have primarily
treated Plaintiff for his lumbar spine issues, but progress notes indicate that they did at least
consider or even treat his left foot issues as well. See, e.g., tr. at 359-64, 703-05, 710-28 (Dr.
Keppler); tr. at 1662-73, 1680, 1698, 1701-02 (Dr. O’Reilly). Dr. O’Reilly did not implicate
Plaintiff’s ankle fracture in his limitations, although Dr. Keppler did refer to it, and both
physicians specifically cited to lumbar disc conditions and prior MRI results as a basis for their
respective restrictions. See tr. at 784-85, 1612-13. The Court finds that this reason is weak and
not a “good reason” because of the weight given to these cited records and in combination with
the other supporting reasons previously discussed that this Court has discounted. Accordingly,
the Court finds that the ALJ did not provide sufficient good reasons to discount and afford only
“little weight” to the remainder of Dr. Keppler’s September 2016 opinion.
The Commissioner correctly points out that the Sixth Circuit has explained that an ALJ
may properly discount opinions, including a treating physician’s opinion, when the opinion is in
the format of a conclusory checkbox questionnaire. ECF Dkt. #15 at 13-14; Ellars v. Comm’r of
Soc. Sec., 647 Fed.Appx. 563, 566 (6th Cir. 2016) (unpublished) (finding that ALJ may properly
afford little weight to treating physician’s two-page check-off form that did not cite to objective
medical evidence); Serrano v. Berryhill, No. 1:17CV2644, 2019 WL 691311, *7 (N.D. Ohio Jan.
30, 2019) (Limbert, J.), report and recommendation adopted Serrano v. Comm’r of Soc. Sec., No.
1:17CV2644, 2019 WL 669634 (N.D. Ohio Feb. 19, 2019) (finding the same). While this is true,
the ALJ in the instant case neither impliedly nor explicitly rejected Dr. Keppler’s opinion for the
reason that it was on a checkbox form. See tr. at 28-29. This Court cannot make up a reason to
discount an opinion that the ALJ did not rely on. See Rogers v. Comm’r of Soc. Sec., 486 F.3d
234, 242 (6th Cir. 2007) (noting it is the duty of the ALJ to “provide ‘good reasons’ for
discounting treating physicians’ opinions, [and provide] reasons that are ‘sufficiently specific to
make clear to any subsequent reviewers the weight the adjudicator gave to the treating source’s
medical opinion and the reasons for that weight.’”); Cole v. Astrue, 661 F.3d 931, 939 (6th Cir.
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2011) (making it “clear that ‘[w]e do not hesitate to remand when the Commissioner has not
provided ‘good reasons’ for the weight given to a treating physician’s opinion and we will
continue remanding when we encounter opinions from ALJ’s that do not comprehensively set
forth the reasons for the weight assigned to a treating physician’s opinion.’”).
In a letter dated May 8, 2017, Dr. Keppler provided another opinion that Plaintiff should
be considered disabled because his disability will persist for at least one year and as such, he
should be eligible for Social Security disability benefits. Tr. at 29, 1659. The ALJ gave this
opinion little weight because it is an issue reserved for the Commissioner. Id. at 29. Contrary to
the Commissioner’s assertion, Plaintiff does not actually challenge the ALJ’s treatment of this
letter. See ECF Dkt. #14; #15 at 14. Even if there was a challenge, there is no error because the
ALJ was correct in stating that the determination of disability for Social Security purposes is
reserved to the Commissioner. See 42 U.S.C.A. § 405(b)(1); 20 C.F.R. § 404.1520; 20 C.F.R. §
404.1527(d)(1); Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (“This Court
must affirm the Commissioner’s conclusions absent a determination that the Commissioner has
failed to apply the correct legal standards or has made findings of fact unsupported by substantial
evidence in the record.”) (quoting Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th
Cir.1997)).
The Court finds that the ALJ’s treatment of the opinion of Dr. Keppler’s September 6,
2016 opinion violated the treating physician rule. 20 C.F.R. § 404.1527(c)(2). Accordingly, the
Court finds that the ALJ’s treatment of the aforementioned opinion evidence does not constitute
substantial evidence. Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011). This case is remanded
to the ALJ for reevaluation of Dr. Keppler’s September 6, 2016 opinion, specifically with regard
to Dr. Keppler’s limitation concerning the need to alternate positions between sitting and standing
as well as Dr. Keppler’s “remainder” opinion.
B. OPINION OF EXAMINING PHYSICIAN
Plaintiff next challenges the ALJ’s treatment of Worker’s Compensation Medical Expert,
Michael A. Harris, MD, an examining physician. ECF Dkt. #14 at 16-17. This Court finds no
error in the ALJ’s treatment of Dr. Harris’ opinion for the reasons set forth below.
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The Sixth Circuit has held that a single examination does not suffice to afford treating
physician status. Kornecky v. Comm’r of Soc. Sec., 167 Fed.Appx. 496, 506 (6th Cir. 2006) (also
noting that “depending on the circumstances and the nature of the alleged condition, two or three
visits often will not suffice for an ongoing treatment relationship.”) (citing Cunningham v.
Shalala, 880 F.Supp. 537, 551 (N.D.Ill.1995) (where physician saw claimant five times in two
years, it was “hardly a foregone conclusion” that his opinion should be afforded great weight));
Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994) (finding treating physician rule did not apply
to clinical psychologist who examined claimant only once, was paid by SSA to examine claimant,
and administered no treatment); Atterberry v. Sec’y of Health & Human Servs., 871 F.2d 567, 572
(6th Cir. 1989) (“Dr. Zupnick is not a treating physician given the fact that he evaluated the
claimant on only one occasion.”).
Plaintiff was referred by a worker’s compensation board to Dr. Harris for a one-time
independent medical exam on May 17, 2017. Tr. at 1621, 1626. Dr. Harris is not a treating
physician. Plaintiff does not argue that Dr. Harris should be afforded treating physician status and
the ALJ did not treat him as such. Accordingly, the “good reasons” requirement afforded to
treating physicians does not apply to Dr. Harris’ opinion. Nonetheless, the Commissioner must
still “consider” and “evaluate” every medical opinion from acceptable medical sources in the
record in light of the 20 C.F.R. § 404.1527(c) factors. See Gayheart v. Comm’r of Soc. Sec., 710
F.3d 365, 378 (6th Cir. 2013) (“The factors set forth in 20 C.F.R. § 404.1527, which under the
regulation apply only to medical opinions from acceptable medical sources, nevertheless
‘represent basic principles that apply to the consideration of all opinions from medical sources
... who have seen the individual in their professional capacity.’”); Hedrick v. Berryhill, No.
1:17CV2310, 2018 WL 6348759, at *6 (N.D. Ohio Nov. 14, 2018), report and recommendation
adopted, No. 1:17-CV-2310, 2018 WL 6344611 (N.D. Ohio Dec. 4, 2018) (“[O]pinions of
one-time examining physicians ... are weighed under the same factors as treating physicians
including supportability, consistency, and specialization.” ) (quoting Douglas v. Comm’r of Soc.
Sec., 832 F.Supp.2d 813, 823–24 (S.D.Ohio 2011)).
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After his May 17, 2017 exam, Dr. Harris opined that Plaintiff could work at a sedentary
level of lifting about 10 to 15 pounds at the waist level as long as he does not lift from the floor,
and he could sit and stand for about 30-minute intervals for 4 hours each day. Tr. at 28, 1625. He
further opined that Plaintiff should avoid any repetitive stooping and bending. Id. at 1625. The
ALJ stated the following concerning the weight he gave to Dr. Harris’ opinion:
The undersigned gives this opinion partial weight. The undersigned gives some
weight to the lifting limitation because it is generally consistent with the medical
evidence for the same reasons discussed above in Drs. Manos’ and Das’ opinions.
The undersigned gives the remainder of the opinion little weight because the
sedentary limitation eliminates the need for a sit/stand option.
Tr. at 28.
As an initial matter, the ALJ’s reasoning pertaining to the sit/stand option is incorrect, as
noted in the prior discussion concerning Dr. Keppler. Plaintiff argues that the remaining reason
about the lifting limitation is faulty because Dr. Harris included an additional limitation
precluding him from lifting from floor level, whereas neither Dr. Manos nor Dr. Das limited
lifting from the floor level. ECF Dkt. #14 at 17; see tr. at 88, 108.
While this is true, the standard for non-treating medical opinions do not require the ALJ
to provide “good reasons” to discount the opinion. An ALJ need not incorporate all of a non-
treating source’s opined restrictions, even if he attributes significant weight to the opinion. See
White v. Comm’r of Soc. Sec. Admin., 970 F. Supp. 2d 733, 753 (N.D. Ohio 2013) (“The fact that
the ALJ did not incorporate all of [agency examining physician’s] restrictions, despite attributing
significant weight to his opinion, is not legal error in and of itself.”); cf. Smith v. Comm’r of Soc.
Sec., No. 5:11CV2104, 2013 WL 1150133 (N.D.Ohio, Mar. 19, 2013) (“Simply put, there is no
legal requirement for an ALJ to explain each limitation or restriction he adopts or, conversely,
does not adopt from a non-examining physician’s opinion, even when it is given significant
weight.”). Rather, the ALJ must simply show that he considered and evaluated the opinion, which
the ALJ has done here. See 20 C.F.R. § 404.1527(c); Gayheart v. Comm’r of Soc. Sec., 710 F.3d
365, 378 (6th Cir. 2013). While an ALJ must consider and weigh medical opinions, the RFC
determination is expressly reserved to the Commissioner. Ford v. Comm’r of Soc. Sec., 114 Fed.
Appx. 194, 198 (6th Cir. 2004) (citing 20 C.F.R. §§ 404.1527(e)(2), 404.1546).
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The ALJ discussed Dr. Harris’ opinion in light of the 20 C.F.R. § 404.1527(c) and
afforded mixed weight to different parts of the opinion. Tr. at 28. The ALJ’s error concerning the
sit/stand option pertaining only to Dr. Harris’ opinion is harmless in light of the standard for non-
treating medical opinions. See Bollenbacher v. Comm’r of Soc. Sec., 621 F. Supp. 2d 497, 502
(N.D. Ohio 2008) (applying harmless error standard to examining physician’s opinion);
Bollenbacher v. Comm’r of Soc. Sec., 621 F. Supp. 2d 497, 502 (N.D. Ohio 2008) (same).
Therefore, the Court finds that the ALJ adhered to the regulations regarding the examining
medical expert, Dr. Harris’ opinion, and supported his findings with substantial evidence.
VI. CONCLUSION AND RECOMMENDATION
For the reasons described above, the Court finds that the ALJ’s treatment of Dr. Keppler’s
September 6, 2016 opinion is not supported by substantial evidence. This case is remanded to the
ALJ for reevaluation of Dr. Keppler’s September 6, 2016 opinion, specifically with regard to Dr.
Keppler’s limitation concerning the need to alternate positions between sitting and standing as
well as Dr. Keppler’s “remainder” opinion.
Accordingly, the Court REVERSES the decision of the ALJ and REMANDS Plaintiff’s
case for further proceedings consistent with this opinion.
Case reversed and remanded under 42 U.S.C. § 405(g) (sentence four).
IT IS SO ORDERED.
Date: March 13, 2020 /s/George J. Limbert
GEORGE J. LIMBERT
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10368131. Public record. Not legal advice.